Louisville & Nashville. Railroad Co. v. McCollister

• Decision Date: 25 February 1889
• Citation: 66 Miss. 106,5 So. 695
• Court: Mississippi Supreme Court
• Parties: LOUISVILLE AND NASHVILLE RAILROAD CO. v. JOHN McCOLLISTER

5 So. 695

66 Miss. 106

LOUISVILLE AND NASHVILLE RAILROAD CO. v. JOHN McCOLLISTER

Supreme Court of Mississippi

February 25, 1889

APPEAL from the circuit court of Harrison county, HON. S. H. TERRAL Judge.

The facts are sufficiently stated in the opinion.

Judgment accordingly.

W. P. &amp J. B. Harris, for appellant.

It was manifestly error for the circuit judge to order the "cases" to be consolidated, and proceeded with as one case. The matter came to the circuit court on one judgment, with one appeal-bond, in a suit in which only one summons had been issued, and no consolidation could there be had.

The case should have been dismissed for want of jurisdiction in the magistrate's court; the judgment was coram non judice. It was a barefaced attempt by the justice to acquire jurisdiction by splitting the account, and trying each item as a separate suit, and this proceeding was clearly an afterthought on the part of the justice. This court will not tolerate such practice. Harrington v. Fenn, 54 Miss 733. Undoubtedly the plaintiff had three separate causes of action, on which he could have brought three separate suits if he had seen fit to do so, but he did not do this, and he could not on the trial accomplish the same result by treating each item as a separate suit.

The justice of the peace could not issue a single summons for three separate suits, and enter a single judgment, and take only one appeal-bond covering three. The judgment must be reversed.

Elliot Henderson, for appellee.

The question of consolidating suits has been fully discussed at this term in the case of McLendon v. Pass, and comment as to that is unnecessary, save to suggest that the error (if any) committed by the lower court in this particular, has by increasing the amount involved given this court appellate jurisdiction when otherwise it would not have possessed it, and in case the court should reverse the action of the lower court for other reasons, it is hoped the appellant will be taxed with the costs.

OPINION

COOPER, J.

The appellee filed with a justice of the peace three several causes of action against the Louisville and Nashville Railroad Company for injury done to his stock on three several occasions. The justice of the peace seems to have docketed the claims as three separate actions, but issued only one subpoena for the defendant. The defendant appeared by counsel in one case and moved to consolidate the three suits, which motion was overruled, and thereupon, as the record shows, the justice proceeded to try the claim for damages claimed for the killing of a certain heifer (being one of the claims filed), and gave judgment in favor of plaintiff. The record then proceeding states that the attorney for the company, declining to proceed in the other cases, a judgment by default was rendered against the company for one hundred and thirty-five dollars, being the amount claimed in both of the other claims. In other words the justice on the trial of the suit for damages to...